Eric L. v. HHS NH CV-91-376-M 09/30/03 UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIRE

Eric L.; Kim C.; James K.; Julie W.; Bruno J.; Jennifer B.; and Jeff P.; Individually and on Behalf of All Others Similarly Situated, Plaintiffs

v. Civil No. 91-376-M Opinion No.

Commissioner of the New Hampshire Department of Health and Human Services; and Director of the New Hampshire Division of Child & Youth Services, Defendants

O R D E R

This case was originally filed in 1991. In 1997, after

years of litigation, the plaintiffs and the New Hampshire

Department of Health and Human Services, Division for Children,

Youth and Families ("DCYF" or the "State"), entered into a

settlement agreement, which was incorporated into a consent

decree entered by the court. The decree was to be in effect for

five (5) years, terminating on September 1, 2002.

As often happens in this type of institutional reform

litigation, the settlement agreement's terms provided yet another

basis for dispute between the parties. About a year before the

decree was to expire, plaintiffs asserted that a number of the State's obligations under the decree had not been met, and

insisted upon full compliance. The State apparently agreed to

look into those complaints and address them, and both parties

agreed, with the court's consent, to extend the decree's

expiration date to January 31, 2003, in an effort to facilitate

an amicable resolution of the issues raised.

With time running out, and unsatisfied with the progress

being made, plaintiffs filed a motion to enforce the settlement

agreement (decree) on January 16, 2003, alleging a broad range of

substantive breaches of the decree's terms. Plaintiffs also

claimed the State had failed to comply with its obligations in

the area of data collection and record keeping. The parties

attempted to work out their differences over the last few months,

but were unsuccessful. Plaintiffs now seek to move forward on

the motion to enforce, reguesting a further order reguiring

compliance with the decree's terms (though defendants are already

reguired to comply); an extension of the term of the decree to

insure compliance; an order modifying the terms of the decree to

reguire DCYF to assume what plaintiffs assert are new obligations

mandated by evolving federal law and standards; monetary damages;

and attorneys' fees related to seeking enforcement.

2 The State counters that the DCYF fully or substantially

complied with the decree's terms in five (5) of the twelve

substantive areas addressed; substantially or partially complied

in the remaining seven (7) areas; and, where full compliance once

was lacking, DCYF says it has implemented an aggressive plan

which has now brought it into substantial compliance with the

terms of the decree. The State also says that plaintiffs'

assertions of breach are both exaggerated and based upon an

interpretation of the decree's terms that improperly expands the

scope of the underlying agreement and imposes obligations upon

DCYF it never agreed to assume. DCYF also argues that even if it

is determined that a breach occurred, the remedy would not

properly include a further injunction or monetary sanctions, but

an extension of the decree's expiration date, and perhaps orders

aimed at obtaining specific performance. Indeed, DCYF offers to

extend the term of the consent decree.

Having reviewed the matter, considered the issues raised in

the opposing pleadings, and examined both the history of this

particular litigation, as well as applicable legal precedent, I

am persuaded that resolution of the motion to enforce may well

turn on what appear to be disputed facts related to intricate and

complex data collection, record keeping, and reporting

reguirements (and not just upon a disputed construction of the

3 decree's terms). And, in that regard, plaintiffs make a

plausible claim that discovery will be necessary in order to

develop the facts relevant to their claims of breach. It is also

apparent that the parties have been wrestling with these issues

for guite some time, with perhaps a declining spirit of

cooperation in either achieving, or accepting substantial

accomplishment of, the initial goals of the decree.

All of which is to say that this institutional reform

litigation is complex. It involves an aging consent decree that

in effect calls for judicial supervision (in enforcing the

decree) over a government-run program. Given that context, it is

clear both that the "[decree] should not operate inviolate in

perpetuity," and "the district court is not doomed to some

Sisyphean fate, bound forever to enforce and interpret a

preexisting decree without occasionally pausing to guestion

whether changing circumstances have rendered the decree

unnecessary, outmoded, or even harmful to the public interest."

In Re Pearson,

(1st cir. 1993).

This court possesses jurisdiction both to redetermine the

necessity of continuing the decree, or, if appropriate, to modify

it to account for changing needs and circumstances and/or

amendments to the underlying federal law.

And, the

4 pleadings certainly suggest that a fresh look and reexamination

of the current operations addressed by the decree is warranted.

Toward that end, the court is also authorized to appoint a

master to look into possible decree-modifying changes.

That

course seems particularly appropriate here as the plaintiffs

raise intricate issues of administrative compliance that appear

to involve detailed record keeping and data collection that, in

turn, will reguire extensive review and analysis of reams of

documents and years of historical data. Moreover, DCYF says that

in the end it all involves much ado about very little,

particularly given its recent implementation of an aggressive

plan to bring it into full compliance. If DCYF is correct, it

may well be that the current circumstances no longer call for

continuing eguitable mandates embodied in an extended consent

decree.

Although the current procedural rule does not reguire

advance consultation with the affected parties, such consultation

is certainly the better practice. See Fed. R. Civ. P. 53

(amended, effective December 1, 2003). Accordingly, the court

hereby gives notice to the parties of its intent to appoint David

A. Garfunkel, Esq., Gallagher, Callahan & Gartrell, P.A., 214 N.

Main Street, Concord, New Hampshire, 03301, to serve as a master

5 in this case. The court proposes to refer this case to the

master, for the purposes of having the master: survey the

compliance landscape and make findings of fact, and

recommendations, with regard to both noncompliance and effective

remedies; investigate the effect of changed circumstances (and

governing law) and assess the relevance of the decree's

reguirements to the current administrative situation and report

the results; determine and recommend whether under currently

prevailing circumstances the decree ought to be vacated,

modified, and/or extended; make findings and a recommendation as

to whether fees and costs should be assessed relative to the

enforcement effort initiated by plaintiffs; and make a

recommendation as to an appropriate allocation of fees and costs

associated with the master's work.

Conclusion

The motion to enforce settlement (document no. 97) is

denied, but without prejudice to refiling, following the master's

submission of a report and recommendation with respect to the

issues the court proposes to refer (or other issues that may be

referred), or, after the court has determined not to refer the

matter.

6 Within thirty (30) days of the date of this order each party

may file a memorandum addressing the following issues, and any

others they deem relevant:

1. Whether a master should be appointed, as the court proposes;

2. Whether Attorney Garfunkel, or some other gualified person should be appointed;

3. The scope of the referral (e.g., what issues should be addressed, what findings of fact should be made, what recommendations considered);

4. Whether fees and costs should be assessed in connection with this enforcement proceeding;

5. How compensation of the master and his expenses should be fixed and apportioned between the parties.

The parties might wish to consult the proposed amendments to

Rule 53, Federal Rules of Civil Procedure. While not yet

effective, the amendments do describe a procedure that ought to

be followed, as beneficial to each party and the court.

Obviously, the parties themselves are in the best position to

identify any real problems that exist regarding compliance, and

to adopt realistic solutions, without incurring the weighty

expenses of unending litigation and master's fees. But, having

failed to do so, the only available alternative is to press

ahead, and, as that is the case, it is the court's view that the

time has come to review the entire matter - not just whether some

7 breaches have or have not occurred, but whether the consent

decree itself, as it stands, remains pertinent and necessary.

SO ORDERED.

Steven J. McAuliffe United States District Judge

September 30, 2003

cc: Ronald K. Lospennato, Esq. Disabilities Rights Center, Inc. Ann F. Larney, Esq. Attorney General's Office Norman J. Fry, Esq. Rory Fitzpatrick, Esq. Kenneth J. Barnes, Esq. Roy S. McCandless, Esq. Peter T. Barbur, Esq. Gretchen L. Witt, Esq. Martha E. Rubio, Esq. U.S. Department of Justice David A. Garfunkel, Esq.